SITTING IN: Marijuana prohibition is bound to end

Wednesday

Sep 11, 2013 at 12:01 AMSep 11, 2013 at 11:15 AM

Replacing prohibition must not cost states more than prohibition. Instead, the states and Congress should adopt a "child-protection agricultural produce" model for the cultivating of cannabis and commerce in its produce, marijuana, by adults only.

Steven S. Epstein

Late last month, the U.S. Justice Department announced that it is "deferring its right to challenge" the Colorado and Washington initiatives that "tax and regulate marijuana like alcoholic beverages." The announcement and accompanying memorandum, coming after Senator Leahy announced Senate Judiciary Committee hearings on the conflict between federal and state law, signal the administration is willing to discuss marijuana law reform with Congress and the states.

As the conversation proceeds, three things are important to remember. First, as the department concedes, federal resources are inadequate to a task that "traditionally relied on state and local authorities." Second, no state in our federal system is required to address marijuana activity.

Third, national polling by the Pew Research Center indicates over 70 percent of Americans over 18 believe the task "costs more than it is worth," a belief shared by 67 percent of the most dedicated Massachusetts voters in a June 2013 Suffolk University poll.

Yet the department, in very strong language, insists that Colorado and Washington implement tight controls "backed by adequate funding" that address eight priorities guiding federal enforcement or it will seek to close those systems and "act aggressively" despite scarce resources "to bring individual prosecutions.

The department’s stance makes the complicated Colorado and Washington "tax and regulate marijuana like alcohol" models cost each state more than the revenue saved by "legalization" and the revenue they create combined.

Replacing prohibition must not cost states more than prohibition.

Instead, the states and Congress should adopt a "child-protection agricultural produce" model for the cultivating of cannabis and commerce in its produce, marijuana, by adults only. A 2011 poll commissioned by the Massachusetts Cannabis Reform Coalition found 58 percent of Massachusetts voters already support this model.

It punishes distribution to minors with significant jail time and/or fine and requires adults take steps to prevent access to growing plants and marijuana by children.

For those under age it remains a crime/delinquency to grow cannabis, sell or possess over an ounce of marijuana and a civil offense to possess an ounce or less, with no change in the "drug-free" schools policy.

By recognizing marijuana as the herb it is, all laws that now apply to selling fruits and vegetables – including regulation of fertilizers and pesticides, income tax and land use – would apply.

Four other department priorities are preventing marijuana commerce from profiting "criminal enterprises;" being used as a "pretext for the trafficking of other illegal drugs or other illegal activity;" "violence and the use of firearms" in the trade; and growing on "public lands." Created by prohibition, all vanish with the return of the plant to lawful agronomy and the end of prohibition’s built-in price support.

Existing laws, including DUI, child abuse, drug-free workplaces and smoking bans in some places already address the department’s fear of "drugged driving and the other [supposed] adverse public health consequences."

Not addressed by the agricultural produce model are the department’s fears of the "diversion of marijuana" from legalizing states to states that still suffer from prohibition and "possession and use of marijuana on federal property."

The former concern, no different from the tax evasion-induced movement of tobacco products from states with low excise taxes to states with high excise taxes, is the province of the state with higher taxes. The latter concern is exclusively federal.

So, other than superstition, racism, contempt for science, and crony capitalism, nothing stands in the way of the Massachusetts Legislature repealing the constitutionally suspect and wasteful prohibition of marijuana and implementing a "child-protection agricultural produce" model.

Which leaves one question: Legislative intransigence forced the people to win two initiatives reforming marijuana policy since 2007; will it put an end to what most everyone recognizes as a wasteful policy before the people do?

Attorney Steven S. Epstein of Georgetown is a founder of the Massachusetts Cannabis Reform Coalition and written many letters and columns lauding liberty and cannabis.